Executive Action Update: 3 Year EADs Issued After 2/16/15 Injunction Must Be Returned

Maria del Carmen Ramos
Maria del Carmen Ramos

It is no surprise that the implementation of this administration’s executive actions has run into a series of political and legal snags.  But what is surprising is the administration’s response or overall handling of the matter.

In May of this year, the U.S. Department of Justice (DOJ) lawyers disclosed that the Department of Homeland Security (DHS) had issued about 2,500 three-year work permits (as opposed to the currently authorized two-year permits) to illegal immigrants granted Deferred Action for Childhood Arrivals (DACA). Technically, the issuance of the three-year work permits — an aspect of President Obama’s November 20 executive actions which expanded DACA — was a violation of U.S. District Judge Andrew Hanen’s February 16 injunction issued in the case of State of Texas v. United States.

This admission came on the heels of another gaffe by DHS wherein DHS inadvertently issued more than 100,000 three-year permits before the February 17 effective date previously announced by the administration and the entry of Judge Hanen’s injunction.  Due to what Judge Hanen referred to as cavalier attitude to correct its violations of the injunction, Judge Hanen issued an order last Tuesday requiring U.S. Department of Homeland Secretary Jeh Johnson, USCIS Director Leon Rodriguez, ICE Director Sarah Saldana, CBP Deputy Chief Ronal Vitiello, and CBP Director Gil Kerlikowske to appear in court in Brownsville, Texas on August 19 to explain why they should not be held in contempt.  The court advised that it would cancel the hearing if the government was able to demonstrate that it had come into compliance by filing a report summarizing all compliance steps it had undertaken by July 31, 2015.  Specifically, the court advised the government to: (i) update all necessary databases to reflect two-year deferred action and employment authorization; (ii) retrieve the erroneously issues 3 year EAD cards; or (iii) demonstrate that “substantial effort” was undertaken to retrieve the erroneously issues 3 year cards, including home visits.

While the administration has declined to comment,  USCIS has announced that it is requiring the 2,500 individuals to whom 3 year employment authorization cards (EADs) were issued after the injunction to return the EADs to USCIS.  Specifically, USCIS sent two letters to affected DACA recipients.  The first letter instructs the recipient to return the 3 year EAD if the EAD was issued after February 16, 2015.  The second letter advises the affected DACA recipients who have not yet returned the 3 year EAD that the EAD must be returned by July 17, 2015 and that failure to return the EAD without good cause may affect their deferred action and employment authorization.

Moreover, USCIS has placed calls to affected individuals and/or their representatives requesting that the EADs be returned, and sent out a third letter on Monday to individuals who have not yet responded to the previous two requests for the return of the 3 year EADs.  This third letter directs the recipient to appear at a USCIS field office to return their 3 year EAD card, or certify that it has been returned or that it has been lost by July 27, 2015.  It is important to note that this third letter specifically provides that (i) DACA will be terminated, and the EAD declared invalid, effective July 31, 2015, if the recipient fails to comply; and, (ii) physical appearance at the field office is still required if the individual mails the card or certification back.  Additionally, USCIS has also advised that it plans to have plain-clothed USCIS officers begin visiting individual homes in certain cases.

As way of background, a coalition of 26 states, including the State of Texas, sued the U.S. government to prevent the implementation of the President’s Executive Actions on Immigration on the grounds that the executive actions are unconstitutional and would require the states to invest more in law enforcement, health care, and education. As a result of the lawsuit, Judge Andrew Hanen entered a preliminary injunction to maintain the status quo and permitted the lawsuit move forward.

Continue to check back with us for updates on the status of this important immigration matter. Our firm is available to assist with your immigration needs. For more information, please contact Maria del Carmen Ramos at 813.227.2252 or mramos@slk-law.com.

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